[소유권이전등기말소청구사건][고집1970민(2),31]
Preliminary claim for damages at the market price in preparation for impossibility of performance
Since the non-party's provisional registration of the real estate owned by the defendant was made, the defendant's obligation to transfer ownership to the plaintiff can be predicted that the non-party's obligation to transfer ownership will be omitted from the non-performance impossibility due to the exercise of the right to complete the purchase and sale reservation by the non-party. Therefore, in preparation for the impossibility of
Articles 390 and 393 of the Civil Act, Articles 229 and 230 of the Civil Procedure Act
Supreme Court Decision 4293Da172 delivered on October 5, 1961 (Supreme Court Decision 6799, 6800 delivered on November 5, 1961; Decision No. 140(4)839, 230(6)930 of the Civil Procedure Act
Plaintiff
Defendant
Seoul Central District Court (68 Ghana8329) in the first instance trial
Revocation of the original judgment
The defendant will implement the registration procedure for transfer of ownership under the trust contract concluded on October 1, 1968 with respect to the share of the non-party 1 in the non-party 3, 4, 5, 6, and 7 in the case of the share of the non-party 2 in the case of the share of the non-party 3, 4, 5, 6, and 7 in the case of the non-party 1 in the case of the non-party 68 residing in Yongsan-gu Seoul Metropolitan Government No. 68 (the non-party 1 also resides in the same address) with respect to the share of the non-party 2 in the case of the share of the non-party 3, 4, 5
If the defendant fails to comply with the above procedure for the registration of ownership transfer, 300,000 won shall be paid to the non-party 1, 200,000 won to the non-party 2, and 10,000 won shall be paid to the non-party 3, 4, 5, 6, and 7 respectively.
All the costs of lawsuit shall be borne by the defendant.
The plaintiff's attorney is seeking the same judgment as the disposition.
The above fact that the non-party 1 was originally owned by the non-party 40 square meters of 184-dong 184 (hereinafter referred to as "non-party 1") but the non-party 2 purchased shares in the non-party 1's name on August 30, 1967 and the non-party 1's title transfer registration was made on July 27, 1965. The non-party 1's evidence No. 1, No. 2, No. 4, No. 5-1, No. 5-2, No. 7, No. 97, and the non-party 1's title transfer registration was made on the non-party 6's own name to the non-party 1's non-party 1's non-party 4 and the non-party 1's non-party 2's non-party 1's non-party 1's non-party 1's non-party 1's non-party 1'6-party 1'6-party 1's title
In this case, the non-party 10 shall be deemed to have held title trust with the defendant. Thus, the plaintiff who purchased the building site from the non-party 10's inheritor may terminate the above title trust as of October 1, 1968 on behalf of the above inheritors and claim the defendant to implement the procedure for ownership transfer registration in accordance with the inheritance ratio of the above non-party.
The plaintiff filed a provisional registration on July 14, 1969 with respect to the site of this case with the non-party 13's provisional registration on the non-party 13's provisional registration on the non-party 13's provisional registration on the non-party 14, and thus, if the above claim for ownership transfer registration is impossible, the plaintiff would make a preliminary claim at the rate of KRW 25,000 per square meter of the above site. Thus, considering the result of appraisal by the non-party 14's appraiser 14, the non-party 13 can only recognize the fact that the non-party 13 made a provisional registration on the site of this case to preserve the right to claim ownership transfer due to the purchase and sale promise of this case as of July 14, 1969, the non-party 13 can recognize the fact that the share was 25,000 won per square meter's market price around May 15, 1970.
If the non-party 13 exercises the right to conclude the above purchase and sale reservation on the site in this case and completed the principal registration based on the above provisional registration, it can be predicted that the plaintiff's right to claim for the transfer registration of this case against the defendant will be subject to non-performance impossibility, so the plaintiff's right to claim for compensation equivalent to the market price at the time of non-performance impossibility is reasonable.
In this case, the defendant is obligated to implement the procedure for the registration of ownership transfer due to the termination of the trust on October 1, 1968 by the non-party 10's heir on the site of this case. If the execution of the procedure for the registration of ownership transfer is impossible, the non-party 10's heir is obligated to pay to the non-party 10's heir an amount equivalent to the amount of 25,000 won per square year in the case of non-party 10's failure to implement the above procedure for the registration of ownership transfer. Thus, the plaintiff's claim for the principal lawsuit should be justified and accepted. Accordingly, the original judgment different from this conclusion is reasonable, and the plaintiff's appeal is subject to the application of Articles 96, 95, and 89
Judges Salky's (Presiding Judge) No. 54